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Television Formats among exclusive IP rights and free competition: on the forthcoming implementation in Italy of a self-regulating code to discipline Tv formats

Everybody knows that a thing is inexplicable until some unknowing fool comes along and explains it.

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Television Formats among exclusive IP rights and free competition: on the forthcoming implementation in Italy of a self-regulating code to discipline Tv formats

How far are Tv Formats protected in Italy and in the rest of the world? On last June 21, during the Mock Trial at the Triennale di Milano organised by Milalegal and Viacom Italia on the “Domestic and international TV FORMAT protection”, the discussion focused on the actual protection of Tv formats in Italy and abroad, as well as on an Italian self-regulation code for the protection of formats in the process of being drafted on part of a working group composed by the main stakeholders – authors, producers, distributors – coordinated by the Italian Ministry of Cultural Heritage and Activities and Tourism (Mibact), that may be completed early this year.

The most recent available data of national and international markets demonstrate a global production of TV formats that is always growing – in 2013, in European channels, there were more than 28,386 hours of programs transmitted that were based on formats. The global leader for exportation of formats is the United Kingdom, while Italy, even though it represents one-quarter of the European TV market, is mostly an importer, together with France, Spain and Germany.

As emerged during the international roundtable where important International players took part, protecting Tv formats in Europe and in most countries around the world can be challenging, as most jurisdictions do not afford protection to TV formats via a separate legal right, thus there is an opinion that a format which includes an adequately detailed substantial description of the program (i.e. script, screen play) is not a mere idea and could enjoy copyright protection. Moreover, in certain countries courts have concluded that Tv formats may be protected per se by means of copyright or unfair competition.

Milalegal created a ‘simulated case’ for the event, which discussed the decision regarding counterfeiting an original format that has already been produced and broadcasted in Italy. The goal of this simulation was to demonstrate the complexities of protecting Tv formats (intended for television series or for entertainment shows, such as quiz or talk shows) in Italy as well as in all countries where no normative definition that identifies the essential elements of a format is in place. The granting of such protection therefore becomes uncertain and often unpredictable, despite the most recent Italian case law granted protection of television formats which were characterized by originality, creativity and completeness of expression (i.e. fixed in any material form), according to the Italian Copyright Law.

It has been argued that the comparison between format-based programs has often solved in a synthetic assessment based on the perceived perception of the audience to which the work is intended, ending up in protecting elements of a non-existent originality, indeed functional to the genre to which the format belongs, and not the distinctive combination of comprehensively described television elements (both new and commonplace which may or may not be protected as separate intellectual property items). This was the main remarks of most scholars and commentators with regards to the well known orders of the Court of Rome of 2011, when the Court granted the injunction requested by RAI for the program Ballando con le Stelle, inhibiting the airing of the program Baila of its competitor RTI. At the same time, in terms of format protection it would not suffice to invoke unfair competition rules or distinctive signs regulations, as well as breach of confidentiality obligations.

In the course of the Mock Trial the formation of the court chaired by judge Dr. Mario Barbuto, with the help of an industry expert, confirmed that the Tv format can be protected as long as the requisites of novelty, originality and self-expression are reached, thus also pointing out that in order to establish if there has been a violation of copyright law, it is necessary to ensure if the work that is deemed illegal has taken on key and original elements of the registered format or its repeatable narrative structure, provided that this is original and creative. This is good news for competition to the extent that format authors create formats which are not just different from the previous ones, but also original and creative, even if apparently they might resemble closely the formats of others.

The roundtable of that afternoon brought to light that the market by now has matured enough for there to be a written, shared regulation that provides a definition of “format” and that identifies its essential elements, as well as that recognizes the protection and economic value of so-called paper formats, regardless of the creation of an audio-visual work based on the latters.

The panel of experts presided over by Alberto Gambino from the European University of Rome debated over the opportunities and methods with which to proceed to codification of protection of formats and self-regulation that the stakeholders in the industry are currently drafting in Rome.

In the meantime in the current situation, actors, producers and international as well as national distributors confront the uncertainty of format protection and in order to strengthen position may use different methods such as: (i) writing detailed formats; (ii) registering formats if the national set of rules allows for it; (iii) entering into confidential agreements and storing all exchanges in correspondence; (iv) entering into contracts providing for the sole license of rights; and (v) returning formats not acquired to senders in closed envelopes, not to incur plagiarism claims.